After 9-11, the President and legal counsel discussed some legal issues related to interrogation, surveillance, and prisoner treatment. Some agency personnel had concerns with the legality of the activities, raising questions whether some legal memos were improper or retroactive in authorizing Geneva or FISA violations.
This diary reviews, in part, what's happened to the memos, and whether they are they still getting attention.
Twitter: Here
Brief Analysis of DOJ FOIA Response
In response to a FOIA request, DOJ provided a list of DOJ OLC memos. We checked the list, and noticed some curious redactions.
For example, on page 23 of 50, one DOJ OLC memo -- dated August 1st, 2002 -- is not included within the DOJ OLC memo list.
Focus on Redactions in 2012 DOJ OLC Memo List
There is a gap between items 22 (July 9th, 2002) and 29 (August 6th, 2002), from pages 23 of 50 to 24 of 50.
Item 22: "General Counsel for the Board of Governors: Memorandum re Permissibility of federal Reserve Board Efforts to Control Access to Buildings and Open Meetings (Colborn) (issued on July 9, 2002)"
. . .
[ Note: Redacted items 23 through 28: Six (6) DOJ OLC Memo redactions, between July 9th and August 6th, 2002. ]
. . .
Item 29: Assistant Attorney General, Criminal Division: Memorandum re Whether Section 319(b) of the Patriot Act Includes Authority for the Issuance of Grand Jury Subpoenas to Foreign Banks that Maintain Correspondent Accounts in the United States (R.Wemer/Larsen/Yoo) (issued on August 6, 2002)
Source
Analysis: The August 1st, 2002 DOJ OLC memo fits between items 22 and 29, pages 23-24 of 50.
Source: DOJ FOIA response re DOJ OLC Legal Memos, "Department of Justice (DOJ) listing of Office of Legal Counsel (OLC) opinions, 1998-2012"
This memo is also not included on the
DOJ OLC memo website.
Memo Missing from DOJ FOIA Response
Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, August 1, 2002
Analysis
It appears this August 2002 memo is listed, but redacted, from items 23 through 28 of the FOIA response, page 23-24 of 50.
Also,
DOJ's FOIA response does not include this memo, citing (see marginalia, hand written "b(5)," pgs 22-23 of 50)
FOIA exemption b(5). In their FOIA response, DOJ wrote:
DOJ Explanation for FOIA Redactions
DOJ: "We have redacted portions of the documents pursuant to FOIA Exemptions Five and Six, 5 U.S.C. § 552(b)(5) & (6). The material withheld pursuant to Exemption Five is protected by the deliberative process, attorney-client, and/or attorney work-product privileges."
Source
FOIA Exemption b(5) provides exceptions to disclosure:
(b) This section does not apply to matters that are—
. . .
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
Presidential Direction
President Obama on April 16, 2009 ordered the release of certain DOJ OLC memos. One of the memos DOJ OLC released, subsequent to this Presidential direction, was dated August 1, 2002.
The President said, when he ordered the release of the -- now missing, buried, non-indexed -- memo:
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
Source: President Obama statement, April 16, 2009.
Analysis
One way of ensuring that the problem does not repeat, is to fully disclose and publicize the information. This assists with providing valuable lessons learned to warfighters, law enforcement, and the intelligence community, not just legal counsel.
One way of publicizing this information outside the White House and DOJ OLC is to provide that information on a public, government website, where readers recognize its authority.
On other dates, the President ordered the release of other memos in
March 2009 [DOJ Press release
here; EFF list of March 2009-released memos
here]
DOJ Recognizes Public Interest
"In light of the legitimate and substantial public interest in many of the questions raised in those opinions and in the evolution of OLC’s views on those questions, the Department has released the six of those underlying opinions from 2001-2003 that are not classified and that had not previously been disclosed.
"In November 2008, the Department filed a motion in a pending civil action to submit two of those underlying OLC opinions, along with one other, to the court under seal. The Department has determined that there is no longer any reason the three opinions should remain under seal and is therefore withdrawing its motion.
Source: DOJ Press release
Analysis
DOJ no longer objected to redacting that information from the court, and opened the door for unsealing. This is consistent with the principle of public oversight, public access to court information, and an open democracy where information freely flows -- principles we are fighting for when the President orders troops in harms way.
Unfortunately, despite the March 2009 release, DOJ
deleted the page where those memos were available. [Source of link:
DOJ Press release]
Now that the memos are no longer "released" per DOJ OLC; nor included within the DOJ OLC "memo list", does this mean the President has different views on whether we are or are not a nation of laws; and whether there is or isn't a "commitment" to our ideals?
Sample Court Review of Agency Redaction Decisions
There is a recent court case related to redactions, shields, and protection of pre-decisional information.
Court
Material is “predecisional if ‘it was generated before the adoption of an agency policy.’”
Accordingly, a “court must first be able to pinpoint an agency decision or policy
to which these documents contributed.”
Morley, 508 F.3d at 1127
Source
Analysis
DOJ should be able to provide the draft and final versions of the final DOJ OLC memo list to the court to explain why DOJ OLC memos -- released by the President -- are or are not included on the DOJ OLC memo list.
DOJ's public list of DOJ OLC memos is not consistent with the Presidential direction to make public those memos.
Perhaps the President could share which decision he made after "releasing" the memo that authorizes DOJ OLC to remove, redact, not include, or otherwise retain two different lists: One for public consumption; and a second one for internal discussions.
Having two different lists isn't a full, open, public release, but two different lines of evidence: One for the public; a second for internal use. That difference is an issue of public interest.
Conclusions
The redactions are not obviously consistent with the President's and AG's statements related to the release of those memos. In principle, once the President releases a memo, there should be a public, government-generated list which contains that memo. This hasn't happened.
This centralized list would provide confidence that the WH/AG statements made when the memos were released are consistent with current government policy and practices. There appears to be a significant disconnect.
But this isn't about simple civilian control or oversight. These are issues related to legal authority controlling, overseeing, and guiding combat forces. At issue is whether there is, in fact, a firm control of legal authority, as required under Geneva, for combat operations to remain lawful.
Here, it appears the President says one thing, but the legal "experts" are doing the opposite. Rather than fully complying with disclosure, oversight, and public interest, the agency appears to be suppressing, distancing, and hiding.
That disconnect -- not just the original DOJ OLC memos -- also remains a matter of public interest.
1. Disappointing Non-Government Lists Required
The released and public DOJ OLC "memo list" is incomplete. The public release of this DOJ OLC memo list is not consistent with the public record or Presidential public statements. Independent lists should be used to fill in the gaps in the DOJ OLC memo list.
It's non-sensical for a DOJ OLC memo -- released by the President -- to be excluded from a FOIA response in 2012. The August 2002 memo is not contained on the DOJ OLC memo website, nor is it included within the DOJ FOIA response.
Despite a Presidential decision and statement to release controversial DOJ OLC memos, not all released memos are contained within FOIA responses. Rather, DOJ has redacted from the FOIA response the names of memos (1) contained within a Presidential decision to release; and (2) part of a complete, internal attorney work product -- a DOJ OLC memo list -- that is not consistent with the incomplete public list of DOJ OLC memos.
2. Agency Actions Not (Obviously) Consistent With Civilian Leadership
One of the requirements under Geneva is for combatants to show that they were under lawful authority. However, if DOJ OLC FOIA responsese are not consistent with Presidential decisions re memo release -- and there are two different reporting channels for legal memos -- it might create some doubt in the minds of war crimes prosecutors whether the orders of American combatants were clearly lawful or unlawful; or whether there was a clear chain of lawful command over those engaged in hostilities.
3. DOJ Nuances Do Not Create Confidence in Uniform, Executive Control
One of the objectives of the Constitution was to create a Federal system of government, where executive power was centralized within the Executive Branch of Government.
However, the net result of these redactions creates the impression that the Framers' vision is not being realized. Rather than having Executive Authority flow down from the President, it appears DOJ can reverse Presidential decisions, continue to redact information that has been released, and reverse a Presidential decision without adequate accounting.
We were under the (false) impression that once the President orders the release of a DOJ OLC memo, that that release would remain part of the public record, would be incorporated fully within public disclosures of DOJ OLC memos, and not remain the subject of independent analysis.
However, DOJ is (or appears to be) distinguishing between (a) A presidential direction to release a memo; (b) a DOJ OLC memo; (c) an incomplete DOJ OLC-generated list for public consumption; and (d) a complete internal DOJ OLC memo list used for internal purposes; and (e) a FOIA response related to questions about the DOJ OLC memo list.
4. Question: Is this Official Govt Evidence Suppression Related to Civilian Connection With Unlawful Government Action?
There's no disputing the President directed DOJ to release the memos. However, the issue becomes: Why, despite that direction, are the subsequent DOJ OLC "memo lists" continuing to redact information the President authorized releasing.
There must be a government interest in continuing to suppress information otherwise part of the public record and part of the public interest.
However, using the DOJ "logic" they could "update" anything pre-dating a legislative act, and continues to publicly release incomplete information, despite Presidential direction to fully disclose unlawful activity, legal memorandums, or DOJ OLC memos.
Indeed, if DOJ can "successfully argue" that exemption b(5) applies -- permitting them to redact all references to those memos subsequently released by the President, but then withdrawn from the public record -- then those memos must surmount a difficult hurdle before they can be introduced as evidence before a tribunal.
Arguably, once the President orders DOJ OLC to release a memo -- arguably related to alleged illegal violations of Geneva or FISA -- subsequent decisions to redact that information might be construed as evidence suppression related to war crimes. Evidence of illegal activity cannot be lawfully suppressed or withheld.
If that were the case, war crimes defendants could shield all evidence of their illegal activity behind a "deliberative" shield. However, at Nuremberg, the court concluded that even legal memos could be evidence of unlawful activity by civilian legal counsel, subjecting them to prosecution under the laws of war as civilians, far removed from combat.
Recommendations
1. Ask for the transcript of the Court Review of the reasons DOJ OLC provides for each redaction. Get an explanation from DOJ OLC why a FOIA exemption can reasonably apply to content subject to the opposite Presidential decision.
2. Discuss with counsel whether it is reasonable for DOJ OLC to redact a memo -- from a list of DOJ OLC memos -- that has been released by the President.
3. Review the timing of the original DOJ Memo list, subsequently updated in re Legislative Acts related to FOIA.
4. Provide copy of FOIA response, and complete DOJ OLC memo list -- including the Memos released by the President -- to DOJ IG and DOJ OPR; and Senate/House Judiciary.
5. Identify which Presidential, AG, or other agency decision -- after the 2009 release of the memos -- essentially reversed course, and permitted DOJ OLC to remove DOJ OLC memos from the DOJ website despite the Presidential decision to release those memos.
6. Ask WH and AG to reconcile the current decision to redact DOJ OLC memos from DOJ OLC memo lists with 2009-era public statements by the AG and WH related to informed public debate, matters of public interest:
How does the removal -- of these released memos, from the DOJ OLC memo lists -- reconcile with public statements about American ideals, oversight, informed public debate, and public access to information: Is it the position of the government that [private] non-government databases are required to advance the ideals behind the original [official, government] Presidential/agency decision to release these memos?
Summation
The President finds himself in a weak position. With respect to redacting these DOJ OLC memos from the DOJ OLC memo list, the President, AG, and DOJ OLC are contradicting themselves.
Our values and interests are (not) preserved by secrecy, but by non-government access, publication, and analysis of this information outside government.
This (needed, required) oversight can only occur outside government if the non-government forces have perpetual, non-redacted access to this information. The President and DOJ OLC, by their actions, not statements, oppose this.
Indeed, relying on the implicit argument of the President, in our Republic, the principle of oversight can only be accomplished by non-government sources, information, and methods.
The Framers intended for Factions to compete. It is a shame that the President wants to appear to be in one faction of open oversight, but by his actions, he stands with another faction of secret abuse of power. That is a President standing on two sides of the Fence, hardly one standing for principle or as an example of embracing the (supposed) lessons learned.
His contradiction cannot survive the force of reason, the foundation of the Framers and our Republic. It defies reason for these redactions to withstand judicial review, especially in the wake of the goals of FOIA.
Updates
1. It may be possible to compare the various versions of the DOJ OLC memo lists using a format like this: Where redacted and non-redacted versions of documents, websites, memos, and memo-lists are compared.
2. Other DOJ programs disclosed through FOIA:
A. NSL templates; and
B. Deportation Without Arrest Program here, scroll down for July 3rd FOIA responses.